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How Far Away Can A Parent Move And Still Have 50/50 Joint Custody in Illinois
Once you have 50/50 joint physical custody of your kids after an Illinois divorce and paternity action, you’re not likely to ever change your schedule. Still, life will come at you with changes like new work schedules, new spouses and new moves. So, how far away can a parent move and still have 50/50 custody with your children?
Follow your Parenting Plan
The simplest answer to “how far away can you move and still maintain a 50/50 custody and time-sharing arrangement” is that it depends on your Allocation of Parenting Time and Parenting Responsibilities. This is also referred to as a “parenting plan”
At the end of every divorce or parentage action, an allocation of parenting time and parenting responsibilities will be entered within the court. This agreement is an individual contract between you and the other parent that the court has agreed is in the best interests of the children. You and your ex have to live under the power of this order until the order is changed.
Illinois parenting plans must have a provision that addresses relocation.
“[A] parenting plan must set forth the following”
provisions for resolving issues arising from a parent’s future relocation” 750 ILCS 5/602.10(f)(12)
So, the order might already allow you to move a certain distance from the other parent. If so, this would maintain the 50/50 custody/time-sharing agreement that you originally entered into.
Usually, what isn’t written in the parenting plan is as important as what is written in the parenting plan. If it doesn’t say you can’t move…then you can move so long as you are able to abide by the other clauses of the parenting plan.
In the Parenting Plans that my family law office prepares, we always include exactly what will happen in a relocation or move of one of the parents. For example, this language is always included:
“Intention of the Parties. While the parties anticipate that each will continue to reside within reasonable proximity of each other in the State of Illinois, in the event either party seeks to permanently relocate the minor children from the State of Illinois, the parties acknowledge the statutory definition of “Relocation” set forth in Section 600(g) of the Act (750 ILCS 5/600(g)) and the applicability of Section 5/609.2 of Act (750 ILCS 5/609.2).“
We typically say, “we intend to follow the statute” as our back up. But you can write anything you want in the parenting plan and that will trump the statute.
I then specify what the statute said in case the statute changes someday.
“Statutory Definition of “Relocation” ( 750 ILCS 5/600(g))
(1) a change of residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry or Will to a new residence within this State that is more than 25 miles from the child’s current residence;
(2) a change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child’s current primary residence; or
(3) a change of residence from the child’s current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence.”
We then reiterate more provisions of the statute related to relocation but I’m going to get into those provisions later in the article.
Moving With Children When You’re In Cook, Dupage, Kane, Lake, McHenry or Will County.
If you don’t have something specifically contrary in your parenting plan, you’re going to have to fall back onto the Illinois statute.
The Illinois statute (see above) says that any change of residence more than 25 miles from the current child’s residence will trigger the relocation provisions of Illinois Marriage and Dissolution of Marriage Act.
So, you’re the father and the child spends Monday through Friday with mom, the child’s residence is with Mom. You’re just visiting your child, essentially.
In such a circumstance, you, the visiting parent, can move wherever you want because the relocation language of the statute only applies to “the child’s current residence.” Mom, however, would need to go through all of the steps the statute requires (we’ll get into the statute’s requirements in a moment) if she moves more than 25 miles away from her current residence.
But, if you have 50/50 joint custody with your children where is the “child’s current residence” as that child is spending an equal amount of time with both parents.
The child’s current residence is probably both houses, meaning both parents have to stay within 25 miles of each other or trigger the relocation clause of the statute.
If you live outside of Chicago area counties, you can move up to 50 miles without triggering the relocation statute.
This mile amounts should all sound really arbitrary because they are.
If you live on an interstate and the other parent does, too. 50 miles is little more than a half hour. Not that big of a deal if you’re transferring the kids once a week.
If you live in Evanston, Illinois and the other parent lives in Oak Lawn, you are technically within 25 miles of that parent…but you’ll never get to the other person’s house within an hour.
This then brings up the question, 25 miles how? As the crow flies in a straight line? According to the shortest route per Google Maps? The Illinois Statute doesn’t say. Argue whichever way works towards your goals. A judge in Chicago pulls up the Waze App to determine distance for parenting purposes. If that works for your situation, suggest that.
What Happens If One Parent Moves More Than 25 Miles Away?
When there is 50/50 custody or parenting time and one parent in the Chicagoland area moves more than 25 miles away, the following procedures must be followed.
“A parent intending “relocation” as defined above must provide Written Notice (“Written Notice”) of the relocation to the other parent under the parenting plan or allocation judgment. A copy of the notice required under this Section shall be filed with the clerk of the circuit court.
2. The parent intending relocation must provide at least 60 days Written Notice before the relocation unless such notice is impracticable (in which case Written Notice shall be given at the earliest date practicable) or unless otherwise ordered by the court. At a minimum, the Written Notice must set forth the following:
(a) the intended date of the parent’s relocation;
(b) the address of the parent’s intended new residence, if known; and
(c) the length of time the relocation will last, if the relocation is not for an indefinite or permanent period. The court may consider a parent’s failure to comply with the notice requirements of this Section without good cause (i) as a factor in determining whether the parent’s relocation is in good faith; and (ii) as a basis for awarding reasonable attorney’s fees and costs resulting from the parent’s failure to comply with these provisions.
3. If the non-relocating parent signs the Written Notice and the relocating parent files the Written Notice with the court, relocation shall be allowed without any further court action. The court shall modify the parenting plan or allocation judgment to accommodate a parent’s relocation as agreed by the parents, as long as the agreed modification is in the child’s best interests.
4. If the non-relocating parent objects to the relocation, fails to sign the Written Notice, or the parents cannot agree on modification of the parenting plan or allocation judgment, the parent seeking relocation must file a petition seeking permission to relocate.” 750 ILCS 5/609.2
So, you have to give notice of your move and the other parent has to sign off, or you have to file a petition seeking permission to relocate until you can actually move.
After the petition seeking permission to relocate is filed and heard, the Illinois court will modify the parenting plan to accommodate the relocation and/or forbit the relocation.
“The court shall modify the parenting plan or allocation judgment in accordance with the child’s best interests.” 750 ILCS 5/609.2(g)
So, effectively, to move is to modify your parenting agreement…which means your 50/50 custody/parenting time will be in danger of being modified.
Modifying Parenting Time Based On A Parent’s Move.
“A parent’s relocation constitutes a substantial change in circumstances for purposes of Section 610.5” 750 ILCS 5/609.2
“Substantial change of circumstances” is a fact that a parent in Illinois must first establish before requesting a change in parenting time. The formal definition of relocation, 25 to 50 miles away, is automatically a substantial change of circumstances.
“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests” 750 ILCS 5/610.5(b) AND there is a “substantial change in circumstances”
Just because a move of greater than 25 miles is automatically and statutorily a “substantial change in circumstances” that does not mean that a move of 20 miles or even 10 miles is not a substantial change of circumstances.
So, any move can trigger a modification of parenting time away from a 50/50 custody or parenting time order “if the court finds by a preponderance of the evidence…a substantial change in the circumstances of the child or of either parent and that modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(b)
A move of 10 miles in the City of Chicago is probably a substantial change. It all depends on how your family law attorney presents the facts and what presuppositions your judge has.
But, if your Allocation of Parenting Time And Parenting Responsibilities contemplated a move (my proposed orders always contemplate it as I showed above) then the court cannot change the parenting schedule based on the move because a court can only modify a parenting plan “on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein” 750 ILCS 5/610.5(b)
After the substantial change of circumstances test is met and there are no pre-existing facts contemplated by the parenting plan, the court can make a modification to the parenting plan based on the best interests of the child.
“A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” In re Marriage of Eckert, 518 NE 2d 1041 – Ill: Supreme Court 1988
Distance from the children is a big factor. An Illinois domestic relations court can make “its determination that joint custody would not be in the best interests of the …children, in large part, on the fact that [a parent] resided far from [their] children. This distance would make a joint custody arrangement difficult to manage.” In re Marriage of Hahin, 266 Ill. App. 3d 168, 174 (Ill. App. Ct. 1994)
But distance is not automatically going to preclude joint custody “Joint parenting is a tool to maximize the participation and responsibility of both parents in a child’s life. It need not be automatically terminated upon the removal of one parent from close geographical proximity from the other.” In re the Marriage of Seitzinger, 333 Ill. App. 3d 103, 111 (Ill. App. Ct. 2002)
Moving The Children To A New School District In Illinois
Some parenting plans say that one parent is “the primary parent exclusively for purposes of school registration.”
This may mean that the “primary parent” can just register the children in any school district where they live and can thus move and register the kids in the new school.
All parenting plans have a clause that determines who makes educational decisions for the child and how are those educational decisions made. Most parents share education decision-making responsibilities. So, a child shouldn’t be made to move from his current school unless the parents agree.
But, if only one parent lives in that school district, we cannot force the parent to stay in that school district. When the parent moves, they must follow the local districting requirements as to where the child attends school.
The Right Of First Refusal And Moving in Illinois
The right of first refusal is one parent’s right to see their children if the other parent is not available. If you live down the block, you can exercise the right of first refusal easily. If you live 50 miles away, you’ll probably never exercise your right of first refusal.
The right of first refusal is a very powerful way to show the court that you are an involved parent as you’re taking your children every time you possibly can. If you move far away, you’re going to lose this big signal (and the extra time with your kids.
The Real Way To Move And Maintain 50/50 Joint Custody
Whether you’re moving 100 miles away or you’re moving a block away, the best way to move without fear of having your parenting time denied is to just present the other parent with a brand new proposed Agreed Allocation of Parenting Time and Parenting Responsibilities.
Many things beyond just the move probably need to be adjusted in your current parenting plan. It would probably be a huge relief to the other parent that you are updating the parenting plan to appropriately reflect reality as it is today.
If the other parent balks at your move, you can simply point out all the other parts of the parenting plan which are outdated and will eventually cause problems. You are being proactive and reducing anxiety for all the parties involved. Leave the proposed parenting plan with the other parent overnight, you’d be surprised what people will sign to avoid future problems.